Thank you to all the attendees of our webinar earlier this afteroon on "Ricci v. DeStefano – What Employers to Know". The attendance was up substantially over our first webinar and the feedback has been terrific.

In case you missed it, however, you’re not out of luck. You can view and download the Powerpoint slides of the presentation through a link here. You can also view and download the complete presentation (with audio) through a link here. My only request is that if you find the materials helpful, please drop me a line so we can continue to provide useful, relevant content for our readers.

My thanks as well to my colleague Adam Mocciolo for his significant contributions.

Our next webinar is scheduled for August 12, 2009 at noon EST and is tentatively scheduled to tackle the issues Connecticut employers face in dealing with both the federal and state FMLA laws and regulations (which now differ in some significant ways). We may make a last minute substitution of the topic if there are any late breaking legal developments (which tends not to happen in August).

With the holiday weekend now firmly behind us (and hopefully the wet weather and storms behind us too), it seems like a good time to recap some items you might have missed over the last few weeks in employment law.

There was a excellent pair of articles last week on writing effective performance reviews posted at the HR Daily Advisor here and here. The key takeaway: Be specific both in what you expect as an employer and what needs to be done (with a timeframe).

The National Labor Relations Board has, for the last year or so, been issuing decisions from its two appointed members (out of 5). Are these decisions "legal" because they are not a majority of the board? If the decisions are not legal, what happens? Do they get thrown out? That is the subject of many different appellate court decisions of late. The Second Circuit (the federal appeals court covering Connecticut) recently issued a decision that gave the thumbs up to the practice, furthering a split among the circuits.

The Connecticut Supreme Court, in Garcia v. Hartford (download here) recently addressed the question of whether a retiree is an "employee" under a collective bargaining agreement. If so, the retiree would have to exhaust their remedies under the Agreement. The Supreme Court answered the question no, finding that the intent of the parties in this Agreement was that former employees had a different status than current employees. It’s yet another example how proper drafting of agreements can avoid years of litigation later on.

The Decision Applies to Private Employers. Before Ricci was decided, the case could’ve gone two ways — it could have been based on constitutional (equal protection) grounds, or on statutory (Title VII — the law prohibiting race and gender discrimination) grounds. The Court decided to go with the latter. Why does that make a difference? Because Title VII applies to both private and public employers; if it had been decided on equal protection grounds, it would likely have applied only to public (governmental) employers.

Testing Will Never Be The Same. Whether public or private, employers who use tests to assist them in hiring and promotional decisions get some guidance now in the area. Unfortunately, the guidance that the Supreme Court provides isn’t particularly illuminating. Parsing things out, the court suggests that if a test is designed to be race-neutral, the fact that the numbers come out differently than an employer expects is not, in and of itself, enough to throw out the results of the test. There needs to be something more, some "strong evidence in fact". What that is remains to be seen.

But supposing that an employer does accept the results of the test, can it defend itself from a disparate impact claim? The court says yes. The court suggests that as long as an employer designs a test that is that is “job related for the position in question and consistent with business necessity” that might get the employer some traction in defending a claim of disparate impact. Even in that case, however, the Court opens to the door to employees too: The employee can still win a disparate impact claim if the employer refuses to adopt an available alternative practice that has less disparate impact and serves the employer’s legitimate needs.

As a result, employers who use testing in particular will need to be able to rule out other alternatives that it might have used to make its hiring and promotional decisions. (Note: Title VII does contain specific provisions regarding testing as well so employers should not forget to look to the statutory language as well.)

Affirmative Action Plans and Diversity Plans Are OK For Now. Maybe. Some larger companies have programs now that try to ensure that the makeup of their workforce properly represents the makeup of the population. For example, the employer may track "high potential" employees (particularly minorities) within their corporation to ensure that they receive proper consideration for promotions and opportunities. Are these programs ok?

The court suggests that it will allow for some affirmative action plans and notes that employer’s "voluntary compliance efforts" are essential to the success of Title VII:
"[We do not] question an employer’s affirmative efforts to ensure that all groups have a fair opportunity to apply for promotions and to participate in the process by which promotions will be made. But once that process has been established and employers have made clear their selection criteria, they may not then invalidate the test results, thus upsetting an employee’s legitimate expectation not to be judged on the basis of race. … "

For employers, it suggests that you can review your policies and practices that ensure that minorities have a fair chance to succeed, but reinforces the view that you still cannot make your decisions to hire and promote based on race. But how much "affirmative efforts" an employer can use, remains an unanswered question from Ricci.

Tread Cautiously In Conducting a Disparate Impact Analysis for Layoffs and Terminations. One area that disparate impact claims arise is in the context of layoffs and reductions in force. For example, an employee may claim that the black workers were twice as likely to be laid off as white workers. As a result, many employers have started to conduct a disparate impact analysis before the termination to see if the raw statistics are of concern. If they are, employers sometimes reconsider their decisions or re-engineer the layoff criteria to remove such a disparate impact. In other cases, employers simply review the particularly data to ensure that the decisions were fair.

Ricci leaves open the question of whether that practice is legal under Title VII. The court does suggest that the city "was not entitled to disregard the tests based solely on the racial disparity in the results". Does this mean that employer — once it settles on a process for terminations — cannot change that system after it runs the numbers? At one point is the employer "stuck" with the results? That will likely be the subject of litigation at some point.

Don’t Expect This Law to Remain Static. One thing is certain — there are likely to be some more changes to this law in the years to come. One way is through Congressional action (as Senator Patrick Leahy has already suggested). Another way is through additional Supreme Court action. Indeed, Justice Scalia has suggested that there are battles yet to come on this issue:

[The] resolution of this dispute merely postpones the evil day on which the Court will have to confront the question: Whether, or to what extent, are the disparate-impact provisions of Title VII of the Civil Rights Act of 1964 consistent with the Constitution’s guarantee of equal protection? The question is not an easy one.

As a reminder, I’ll be participating in a free webinar next week on this subject. I anticipate that it’ll focus on the practical implications of the decisions and additional steps that employers can take now to avoid becoming the next test case before the Court.

For a case out of little Connecticut, the Ricci v. DeStefano case today sure has drawn big interest. Seems like everyone has an opinion on the matter.

There are plenty of wrapups of the case out today. Many of them are, predictably, saying much of the same thing: Interesting case; probably applies to private employers; still waiting to see the impact.

Monday’s crucial ruling is on the question: how serious does the prospect of litigation over an employment practice have to be before an employer is allowed to lean over in the opposite (discriminatory) direction to avoid liability? Justice Kennedy’s majority rejected New Haven’s contention that a "good faith" fear of liability should be enough, but also rejected the firefighters’ contention that reverse discrimination could be justified only to avoid an outright collision between the two legal requirements. Instead, Justice Kennedy selected a middle ground: to discriminate against majority applicants, employers will need a "strong basis in evidence" that they otherwise "would have been liable."

Even now, The New York Times is no doubt preparing an editorial grimly portending the return of white supremacy at the hands of a callous Court. But the moral is probably a narrower one: If you’re going to shaft white applicants, don’t be as blatant about it as New Haven was. Kennedy was clearly angered by the after-the-fact disavowals and excuses by the city that, in his words, were "blatantly contradicted by the record." The Court is traditionally unsympathetic to employers that invent "pretextual" reasons for biased decision making; this time that principle happened to cut in an unexpected direction.

The World of Work blog has its take on the decision and predicts something else — a bill from Congress. In addition, the blog suggests that employers need not worry about the case (something that I disagree on, to a degree, as I’ll discuss in an upcoming post):

Ultimately, the Ricci decision will have little to no impact on most employers, but represents a small victory for employers (despite the positioning here that held against the city/employer). Employers can now take a somewhat more confident stand in backing test results that may demonstrate some disparate impact, so long as the test was objective and no other less discriminatory alternative exists. The Ricci decision may not last for long, however. Political condemnation by Democrats has been swift, with Senator Patrick Leahy (D-VT) saying that "it is less likely now that employers will conscientiously try to fulfill their obligations under this time-honored civil rights law. This is a cramped decision that threatens to erode these protections and to harm the efforts of state and local governments that want to build the most qualified workforces." Don’t be surprised if Congress passes legislation down the road aimed at upending the Ricci decision.

The professors at the Workplace Prof blog are, not surprisingly, hard at work trying to make sense of the decision as well. While some of the analysis is geared towards academics, they make a good point for employers: Title VII is going to be a mess to navigate.

The result is also going to make it difficult for employers to navigate Title VII, although maybe not more than it was before this decision. Employers will likely do nothing to evaluate their hiring or promotional processes until those processes have run their courses. There is very little incentive for employers to try avoid disparate impact liability any more than they would have before this decision, and more incentive not to change anything, just in case that change is itself discrimination.

I’m not necessarily sure I agree with this because it presumes that employers don’t care about their employees or care about ensuring that their workplace is free from discrimination. Many employers already have systems in place to review their hiring and promotional practices; it’s difficult to see why employers would simply dismantle these programs in light of Ricci.

The new standards the Court has imported into the Title VII legal equation are not really specific or well-defined, so it very likely will take future lawsuits to sort out just what the new requirements mean. In practical terms, it is very likely that employers will have to go to greater lengths to assure that testing protocols are race neutral, and will have to have sounder legal advice about the risks they take under Title VII if they apply test results that have a negative impact on minority workers.

A further read-through of the Ricci v. DeStefano case today has reinforced my view that there are going to be some real lessons learned for employers out of this case. The case had the potential of being a very narrow decision which would have minimized the impact to employers. However, because the court addresses head-on various Title VII issues, it’s likely to creep into much larger issues and it’s not out of the question to see it impact affirmative action plans or diversity programs.

Because of that, I’ve decided to spend a good deal of time discussing this case and the impact on employers in Connecticut and beyond in a webinar scheduled for July 8th at noon EDT. You can register for it for free here. Space will be limited so be sure to sign up today.

In this session, I anticipate we’ll discuss::

— The basics of Title VII and how it applies to employers
— The differences between "disparate impact" and "disparate treatment" claims
— How employers should deal with the use of tests in the workplace and what it is permissible to do when the test results seem "off"

— What the lessons are to be learned from Ricci, and steps employers can take to avoid reverse discrimination claims in the future

— What is "reverse" discrimination and whether employers need to be concerned about such claims

— What the impact this decision will have on affirmative action plans and diversity programs

As time permits, we will also wrap up the other Supreme Court employment law decisions in the 2008-09 term and the takeaway for employers in each of those cases, including an important age discrimination case.

In closing out its 2008-09 term today the U.S. Supreme Court ruled 5-4, along ideological lines that the city of New Haven violated Title VII in refusing to promote a group of white firefighters and refusing to apply the results of a test that it claimed would have had a disparate impact on minorities.

But despite the hyperbole about this case beforehand, the case has pitted two competing issues against each other – the city’s alleged fear that the test, if applied, would have had a disparate impact on minorities (opening itself up to a lawsuit) and the firefighter’s right to be promoted based on doing well on the test. The Court said that the city’s fear was not sufficient to not use the test and that not using the test was a violation of Title VII.

Indeed, in its decision, the Supreme Court goes one big step further; it provides the city with a defense to a possible disparate impact lawsuit:

Our holding today clarifies how Title VII applies to resolve competing expectations under the disparate-treatment and disparate-impact provisions. If, after it certifies the test results, the City faces a disparate-impact suit, then in light of our holding today it should be clear that the City would avoid disparate-impact liability based on the strong basis in evidence that, had it not certified the results, it would have been subject to disparate-treatment liability.

Justice Ginsburg provides the dissent here and predicts that the case will be difficult to apply in practice and further suggests that employers may have a difficult time fiting within its parameters:

As a result of today’s decision, an employer who discards a dubious selection process can anticipate costly disparate-treatment litigation in which its chances for success—evenfor surviving a summary-judgment motion—are highly problematic. Concern about exposure to disparate-impact liability, however well grounded, is insufficient to insulatean employer from attack. Instead, the employer must make a “strong” showing that (1) its selection method was“not job related and consistent with business necessity,” or (2) that it refused to adopt “an equally valid, less-discriminatory alternative.”

I’ll refrain from any big snap judgments until I review the decision at length (93 pages and all) but suffice to say that this decision will be the new starting point for employers who worry about disparate impact claims. It’s application to private employers will no doubt be scrutinized as well, but I’m going to review the whole decision before drawing too many conclusions.

What’s interesting is that the court decided the case on Title VII grounds instead of the "Equal Protection Clause" questions that it also faced. What this means is that private employers need to pay much closer attention to this case than had it been decided on the other grounds. After all, Title VII applies just as much to private employers as it does to the government.

My firm will be presenting a free webinar on this case and its impact on employers on July 8th at noon. Details will be forthcoming in a post later today.

Those waiting for a decision in the hotly-anticipated Ricci v. DeStefano case will have to wait a few more days (likely Monday). The U.S. Supreme Court released the decisions for the day this morning and Ricci was not among them. It is now expected to be released early next week. It is one of just three cases remaining on the court’s docket.

In the meantime, Slate has published a lengthy piece today about the story "behind" the case. It appears to be well-sourced and detailed and provides the type of insight you would expect from Slate. As the article states:

The story behind Ricci is just one example of an entrenched conflict over municipal hiring that extends back in time and across the country. For at least two generations, competition for jobs in many cities has been framed as a battle between one ethnic or racial group and another over who is an insider and who is an outsider. Black firefighters first brought a suit over discrimination in New Haven in 1973. They won. So did minority firefighters who sued Cleveland, Birmingham, St. Louis, New York City, Newark, Bridgeport, Buffalo, Philadelphia, Massachusetts (statewide), San Francisco, Baltimore, and Minneapolis, according to the NAACP Legal Defense Fund.

But those victories all came in the 1970s. More recently, white firefighters have begun to fight back in court. Frank Ricci’s case isn’t the first reverse discrimination suit in a fire department. In 2001, four white men sued the Boston Fire Department for hiring minority candidates who had scored lower than the plaintiffs on a civil-service exam. They were the first to challenge the Boston department’s affirmative-action policy since it had been upheld by the U.S. Supreme Court in 1989. In 2004, they won. Last year, a Los Angeles jury awarded two white fire captains $1.6 million in damages in a suit claiming that they had been punished more severely than a minority officer for participating in the same prank. The New Haven suit, meanwhile, has spurred a similar one by white firefighters, also over promotional exams and test scores, in nearby Bridgeport, Conn.

The Supreme Court is expected to rule later this month on the controversial case of Ricci v. DeStefano, the case out of New Haven, Connecticut involving a group of white firefighters who have alleged discrimination by the city.

But what will happen after the court rules on the case?

That’s the subject of an interesting post by the New Haven Independent today who talked with Linda Greenhouse, a former reporter for The New York Times who covered the U.S. Supreme Court for many years:

When the U.S. Supreme Court finally decides city firefighters’ fate this month, the wait for promotions probably won’t be over. It will likely return to Judge Janet Bond Arterton’s New Haven courtroom.

And it could take a while.

That’s the most likely scenario of several sketched out by a leading Supreme Court expert, Linda Greenhouse, when asked about Ricci v. DeStefano. The court is to issue a decision before its term ends in late June.

Greenhouse predicts that those expecting a quick outcome are going to be disappointed:

“Folks in New Haven who are expecting a clear ruling out of this, may be quite surprised,” said Greenhouse. Greenhouse covered the former Supreme Court for The New York Times for 30 years; she won a Pulitzer Prize doing it. She is now a faculty member at the Yale Law School.

“It may leave them as confused as they’ve been all along,” Greenhouse predicted.

Because the case has also been a lightning rod for criticism for Supreme Court nominee Sonia Sotomayor, expect to hear lots more about it in the weeks to come.

Over the last 24 hours, much virtual ink has been spilled on a case pending before the U.S. Supreme Court, Ricci v. DeStefano, because Judge Sonia Sotomayor — one of the judges handling the case at the Court of Appeals — has been nominated to the Court. (I’ve covered the case in various posts here.) From a Connecticut perspective, the Hartford Courant does its own recap here.

The question, frankly, is why such a fuss?

Back in September 2006, U.S. District Court Judge Janet Arterton issued a lengthy opinion in which she dismissed the firefighters reverse discrimination claims and found for the city of New Haven. Judge Arterton is no stranger to employment law cases, having represented mainly employees in private practice before getting appointed to the bench. The decision is well worth the read. Reasonable people can disagree with the outcome, but Judge Arterton’s decision hardly lacks logic or thorough reasoning.

The firefighters appealed and the case went up to the Second Circuit. Judge Sotomayor was one of three Second Circuit judges selected to serve on a panel to hear the case. In the summer of 2008, she and two other judges decided to affirm the district court’s decision.

The two other judges, Judges Pooler and Sack, and Judge Sotomayor all agreed that they did not have anything to add to Judge Arternon’s decision so they issued a "per curiam" opinion which, in essence, adopted the lower court’s reasoning. (I should note that they original issued a summary order on the case, later turning it into a "per curiam" decision. Summary orders are quite commonly used in the Second Circuit). While not an everyday occurrence, it’s not uncommon for courts to use "per curiam" decisions either. (Of course, perhaps the most famous "per curiam" decision was in Bush v. Gore, but that’s an argument for another day.)

Here was the essence of the the Second Circuit’s decision:

We affirm, for the reasons stated in the thorough, thoughtful, and well-reasoned opinion of the court below. Ricci v. DeStefano, 2006 U.S. Dist. LEXIS 73277, 2006 WL 2828419 (D.Conn., Sept. 28, 2006). In this case, the Civil Service Board found itself in the unfortunate position of having no good alternatives. We are not unsympathetic to the plaintiffs’ expression of frustration. Mr. Ricci, for example, who is dyslexic, made intensive efforts that appear to have resulted in his scoring highly on one of the exams, only to have it invalidated. But it simply does not follow that he has a viable Title VII claim. To the contrary, because the Board, in refusing to validate the exams, was simply trying to fulfill its obligations under Title VII when confronted with test results that had a disproportionate racial impact, its actions were protected.

The case now is pending before the U.S. Supreme Court where another split decision is expected.

The attack on Judge Sotomayor from some on the Ricci case seems to focus on the fact that she and two other judges decided to dismiss the claim in a "per curiam" decision, rather than in a lengthy one. However, there are many reasons why a case might be decided in that fashion and to attribute and speculate as to the reasons it was used in the Ricci case seems to be reaching for an argument that might not otherwise exist. And regardless, there were many other judges in the Second Circuit who did not believe the case warranted any further decision either as determined by the en banc vote. Are all of them disqualifed from serving on the Second Circuit too?

All of these critcisms of Judge Sotomayor seem to be a reach for an argument that doesn’t really seem to exist based on her handling of the Ricci case. And it certainly doesn’t suggest that she is unqualifed to serve on the U.S. Supreme Court. After all, if the Supreme Court rules in favor of the city, does that mean that the justices are also "reading racial preferences and quotas into the Constitution"? The answer is obvious: No.

So, what are we ultimately to make of the Ricci case? In my view, not much. It is, quite simply, a difficult decision in which very bright people can disagree. And judges don’t get to pick and choose the cases they are asked to judge.

As the Workplace Prof succienctly said last month, "One of the reasons that this case is so challenging and so divisive is that this case seems to be all about the framing of the issue. It is very difficult to separate that framing from the factual question of the parties’ subjective intent or the credibility question of whether to believe their assertions. The way that the facts and law get merged together make for a doctrinal mess. It seems like people talk past each other constantly."

I do not believe that New Haven refused to promote Mr. Ricci because he is white. I believe that it simply concluded that the test must have been biased. If true, this is simply not discrimination. Lets hope the Supreme Court gets it right!

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About Dan

Daniel A. Schwartz created the Connecticut Employment Law Blog in 2007 with the goal of sharing new and noteworthy items relating to employment law with employers, human resources personnel, and executives in Connecticut. Since then, the blog has been recognized by the ABA Journal, and was one of ten named to the “Blog Hall of Fame” in recognition of the blog’s contributions and consistency over the years.